Pelton + Balducci Immigration

FAQs

Is a lawful permanent resident the same as a citizen?

No. U.S. citizens are born in the United States, become citizens through their U.S. citizen parents, or through naturalization. Citizens have certain unique benefits, such as the ability to reside outside the United States indefinitely and the ability to vote in U.S. elections. Also, assuming that there was no fraud in the immigration process up to and through naturalization, citizenship is very hard to lose.

Lawful permanent residents, on the other hand, have a less secure status in the United States than U.S. citizens. These residents are given what’s known as a “green card,” which allows them to live and work in the U.S. and petition for close family members to also receive permanent residence in the U.S. This status is not truly permanent, as it can be lost. Commission of certain crimes can result in removal  (deportation) proceedings against permanent residents. Further, permanent residents can lose their status through excessive absences abroad that are indicative of an intention to abandon residence in the United States. Permanent residents must also continue to update the U.S. government of their addresses within 10 days of moving and renew their green cards prior to expiration.

What is conditional permanent residence?

Like a lawful permanent resident, a person granted conditional permanent residence is allowed to live and work in the U.S. However, because the residence is conditional, the green card they receive will only be valid for 2 years. Conditional residence is granted in cases where the status is based upon a marital relationship that is less than two years old at the time of adjudication. The conditional resident must file a petition to “remove conditions” within the 90-day window prior to the expiration of their conditional resident status. Failure to do so will result in loss of status, though there may be ways to preserve eligibility for permanent residence even if the deadline is missed or if the marriage upon which the conditional resident status is based has been terminated.

How long does it take to become a citizen?

Lawful permanent residents (green card holders) who are 18 or older can apply to become U.S. citizens through naturalization, but this process does not happen overnight. 

These residents must meet certain requirements to even begin the application process. Requirements include continuous residence in the United States for five years (or three years if the resident is married to a U.S. citizen) and demonstrating good moral character during that time frame. Fulfillment of tax filing obligations and avoidance of serious criminal issues during the years leading up to naturalization are examples of some of the factors reflecting good moral character. The applicant must also pass an English language and U.S. civics exam as part of the naturalization process, subject to some exceptions (e.g., The English and civics requirements may be waived for applicants whose disabilities preclude them from taking the test. Also, certain applicants are exempt from the English language requirement based on their age and length of time as a permanent resident.).

Once all requirements are met, the process takes about 6 months to a year from the time you apply to obtain citizenship. These timeline estimates often change, however.

Who can be deported?

Removal from the United States, often referred to as “deportation”, is when immigration authorities order an individual to leave the United States. Undocumented immigrants can be deported, as can any non-citizen who violates the terms of their visa or immigration status, including permanent residents. An encounter with law enforcement is a common way that an individual ends up in removal proceedings. 

However, it is important to know that in most cases, removal from the United States is not automatic, but rather is a months-long or sometimes years-long process in immigration court. An individual placed in removal proceedings has the right to retain counsel to present a defense to deportation. If the judge’s decision is unfavorable and there is a  legal basis to do so, an applicant may appeal.

Are people allowed to return to the US after being deported?

Although it’s not impossible, it is very difficult to return to the U.S. after being deported. Depending on the reason for deportation, a foreign citizen has to wait a certain amount of time and/or be approved for a waiver before even being eligible to apply to return to the United States.

How hard is it to get immigration status?

There are three main ways to get lawful immigration status in the United States:

1) through one’s family;

2) through work; or

3) for humanitarian reasons (like asylum).

While these means of acquiring status sound broad, they are in fact quite narrow. Either they are subject to quotas or strict legal requirements that many people are unable to satisfy. This explains why there are many undocumented people in the United States. Although most want to obtain lawful status, they are unable to.

A skilled immigration lawyer can assist you in determining if one of the pathways to lawful status applies to you.

My boss wants to hire me. Can they get me papers? (Or: I have this really great worker, but they don’t have papers. Can I help them get status?)

As noted in our answer above, it can be hard to get immigration status. This is true even if you’re a hard worker with an employer who would love to keep you. First, the process for getting a worker lawful status is technical and imposes a number of obligations on employers. Also, complications often arise because individuals who are present in the United States without authorization are generally subject to certain penalties that eliminate avenues to lawful status. There may be ways to get the worker status, but it requires much more than just a willing employer

How do I apply for asylum in the U.S.?

Generally, people seeking asylum must demonstrate that they fear returning to their country of citizenship due to one or more of the following 5 reasons specified by law: fear due to the applicant’s

1) race,

2) religion,

3) nationality,

4) membership in a particular social group, or

5) political opinion.

It’s important to note that not every fear of harm in one’s home country leads to eligibility for asylum. Rather, the harm or fear of harm must be on account of one of these five reasons. Further, the perpetrator of the harm must be a government actor, or a group or individual in the country that the government is unable or unwilling to control. 

Applicants for asylum must apply within one year of entering the United States, although exceptions to this rule exist for changed circumstances in one’s country of citizenship or “extraordinary circumstances” for not meeting the one year deadline.

An asylum application may be presented “affirmatively” with United States Citizenship and Immigration Services (“USCIS”) or as a defense to deportation in immigration court.

What is a green card?

A green card, officially called a Permanent Resident Card or I-551 card, is the document evidencing lawful permanent resident status for immigrants in the U.S. This card allows the resident to live and work in the U.S. and re-enter the country legally after international travel. While permanent residents are required to have proof of status, it’s important to note that they do not lose their status if their green card expires.

How much does it cost to get a green card?

This varies depending on the type of application or petition you are using to apply for lawful permanent residence. Each process has various costs and fees involved. Consult an immigration attorney today for more information.

Can I work in the U.S. while waiting for my green card?

Normally, an applicant for lawful permanent resident status submits an application for employment authorization concurrently and is permitted to work lawfully upon USCIS’s issuance of the employment authorization card (EAD). Prior to the pandemic, the EAD would generally be issued within a few months of application, and prior to adjudication of the lawful permanent resident application. More recently, the average adjudication of EADs for people with pending green card applications has taken about 10 or 11 months.

For those applicants already in the U.S. on an H-1B or L-1 work visa, then you may continue working for your designated employer while awaiting your green card.

What is DACA?

DACA is the abbreviation for Deferred Action for Childhood Arrivals, a program that protects people known as “Dreamers.” These Dreamers were brought to the United States when they were children, either without proper documentation or with documentation that later lapsed, leaving them without lawful status.

DACA allows these Dreamers to apply for a driver’s license, social security number, and work permit. However, it does not grant them official legal status or citizenship. Only individuals who were under 16 at the time of entering the United States AND who entered on or before June 15, 2007 are eligible to apply for DACA.

How long after my marriage can I apply for a green card?

You can apply for a green card as soon as you and your spouse are married if your spouse is a U.S. citizen and you have the legal documents needed such as marriage and birth certificates. If your spouse is a lawful permanent resident, then an I-130 Petition must generally be filed first and then the application for lawful permanent resident status may only be filed once a visa is available to the immigrating spouse.

What is the difference between a fiancé visa and a marriage visa?

As a U.S. citizen, you may choose to apply to bring your fiancé to the U.S. before you marry (fiancé visa), or bring them to the U.S. as your spouse (immigrant visa via marriage). There are pros and cons to each process.

While the fiancé visa typically tends to be quicker and less expensive, your fiancé will not be able to work, drive, or go to school immediately upon arrival in the U.S. This is because they must go through another application process once you’ve married in the U.S. (the marriage must occur less than 90 days following your fiancé’s arrival to the United States) to apply for their green card.

The immigrant visa via marriage, however, may take longer on the front-end, but your spouse will arrive in the U.S. as a lawful permanent resident and face fewer obstacles in terms of work, etc.

As a practical matter, establishing the validity of a marital relationship can be simpler than establishing the validity of an engagement due to the level of commitment shown prior to the partner’s relocation to the United States. Therefore, marriage is  frequently the most recommended route.

What is the “Public Charge” rule?

The Public Charge rule is intended to deny a U.S. visa to anyone who is likely to become a “public charge” (i.e., someone who will need government benefits to survive), but this term is very broad. Under the Trump administration, the rule was significantly expanded and served as a deterrent for visa applicants who might become dependent on government benefits, asking the applicant questions about their health, education level, and work experience. 

Trump’s public charge regulation was being challenged in court at the time that President Biden was inaugurated. The Biden Administration chose not to defend the new rule, and the case has been dismissed. Therefore, the prior, more straightforward public charge rule is once again in effect.

If I am currently in the United States, should I apply for consular processing abroad or adjustment of status inside the United States?

This depends upon your current location and life circumstances, as well as legal eligibility to apply for each benefit, and factors such as your manner of entry into the United States and your immigration history must be evaluated. You should consult with legal counsel, who will advise you which process, if either, is available to you.

“I'm more than satisfied with my experience with Pelton & Balducci! I was very stressed about my steps for my H1B visa, but thanks to their efficiency and seriousness, I was reassured. They answered all my questions quickly and even responded to my telephone calls from France. I would recommend them to all my compatriots and colleagues without hesitation!”

- Loic B.

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